Kenya Tests International Justice

Some African leaders have leveled this preposterous accusation against the court, which was established in 2002 to hear cases of genocide, war crimes and crimes against humanity.

The ironies are rich. It’s true that all eight of the countries where the tribunal has opened investigations thus far have been in Africa. But half of the cases were referred to the court by Africans. (The others originated with the United Nations Security Council or the court’s chief prosecutor.)

Moreover, it seems that African leaders, who overwhelmingly agreed to the Rome Statute that set up the tribunal, now complain about it because it is doing its job too well — by pursuing justice and accountability even, or especially, at the level of heads of state. Hypocrisy is the homage that vice pays to virtue.
The court currently faces a critical challenge to its legitimacy. Two defendants — President Uhuru Kenyatta and Deputy President William Ruto of Kenya — face charges relating to deadly postelection violence in Kenya in 2007-8. Although they have pledged to cooperate with the court’s proceedings, leaders of the African Union asked the Security Council last week to defer the cases for one year, saying that Kenya, which is still dealing with the aftereffects of a deadly terrorist attack on a shopping mall in Nairobi in September, would be destabilized by the absence of its two leaders.

The African Union’s criticism of the I.C.C. has come from several leaders in the region: Prime Minister Hailemariam Desalegn of Ethiopia, President Yoweri K. Museveni of Uganda and President Paul Kagame of Rwanda, who have all shown authoritarian tendencies.

But it would be a grave mistake for the international community to view these leaders as speaking for the desires and aspirations of their peoples.

The violence that followed the presidential election of December 2007 remains a blot on Kenya’s history. President Mwai Kibaki, a Kikuyu, was declared the victor over Raila Odinga, a Luo, in an election that was widely viewed as illegitimate. The Kikuyu and the Luo have been historical rivals for power. But in the 2007 elections, Mr. Odinga united all the major ethnic groups (including Mr. Ruto’s Kalenjin) against Mr. Kibaki and the Kikuyu.

Mr. Ruto is accused of organizing and orchestrating Kalenjin militias to attack, kill and evict the Kikuyu from the Rift Valley, his people’s ancestral base. Mr. Kenyatta is said to have organized the Mungiki, a deadly Kikuyu militia, to counterattack the Kalenjin, which they did viciously. Over 1,100 people were killed, and 650,000 displaced.

Kofi Annan, the former United Nations secretary general, brokered a peace deal that led to a coalition government in which Mr. Kibaki remained president, but Mr. Odinga was named prime minister.

Remarkably, Mr. Kenyatta and Mr. Ruto — erstwhile mortal enemies, and both charged with crimes against humanity — teamed up to win this year’s elections. They defeated Mr. Odinga in an election viewed, again, as having likely been stolen.

The two men have said they would cooperate with the court’s work but have intensified a diplomatic offensive, begun in 2011, to try to stop justice.

In a fiery speech at an African Union meeting in Addis Ababa, Ethiopia, on Oct. 12, Mr. Kenyatta and others urged African states to withdraw en masse from the I.C.C., which he called a tool of Western powers.

His government, a pivotal ally of the United States, has stated that Kenya’s “true friends” must support the deferrals, or risk a deterioration of relations. Kenya is forging closer ties with China, Russia, Brazil, India and South Africa, another sign of its effort to pressure the West to delay the cases.

If the Obama administration caves in, it would sound a death knell for the I.C.C. It would represent a legal and moral abandonment of victims of violence and their survivors, and give criminal suspects more time to intimidate, bribe or even kill witnesses. It would say that presidents are free to kill, maim and rape their citizens with impunity.

Statesmen like Mr. Annan, of Ghana, and his fellow Nobel laureate Desmond Tutu, of South Africa, hope that Mr. Obama will stand firm against the deferral, as he has until now.

Security and the fight against terror will be important factors for Mr. Obama to weigh in his decision whether to veto the deferral request. Kenya has a role in maintaining regional stability — but it has greatly exaggerated that role following the Shabab attack on the Westgate shopping mall in Nairobi on Sept. 21, which killed 67 people.

The United States needs Kenya in its fight against terror, but Kenya needs the United States even more in its war against the Shabab, the deadliest terrorist organization in East Africa. Kenya has received millions in United States military aid since 2006. Dozens of United States law enforcement agents are in Kenya providing forensic support to the police.

Nor should the United States worry too much about Mr. Kenyatta’s threat to “look east” to China. The Kenyan elite is Western-oriented and the Kenyan diaspora is concentrated in Britain and America. Kenya relies on investments, trade, and tourists from the West.

In a speech in Cape Town in June, Mr. Obama said that democracy and transnational justice were preconditions for attracting trade and investment and maintaining lasting peace and security. He must remain steadfast.

Does the United States want to revert to the Cold War policy when it supported murderous dictators in Africa? Does it want to turn the clock back three decades, and listen to dictators like Mr. Mugabe, Mr. Kagame and Mr. Museveni? Or will America listen to Archbishop Tutu and Mr. Annan and veto the deferrals?

Makau W. Mutua is the dean at Buffalo Law School, State University of New York. He is the author of “Kenya’s Quest for Democracy: Taming Leviathan.”